D. The Engallas' "Waiver" and "Unconscionability" Claims Do Not Provide a Basis for Avoiding Their Contractual Obligation to Submit to Arbitration All Causes of Action "Arising Out of" the Service Agreement. Respondents assert additional, independent grounds for avoiding arbitration. Specifically, although the trial court did not so find, they contend that Kaiser "waived" its contractual right to arbitrate the claims asserted in this case n20 by engaging in dilatory conduct in the aborted arbitration proceedings. They further contend that the arbitration provision is so "unconscionable" as to be unenforceable. Neither of these theories provides a basis for denying Kaiser's petition to compel arbitration. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 This is a variant of the argument that Kaiser materially breached the arbitration agreement and, thereby, forfeited its right to compel arbitration. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is well established that the right to compel arbitration is a contractual right which is subject to waiver, and that such waiver may be express or implied from the party's conduct. (See @ 1281.2; Davis v. Blue Cross of Northern California, supra, 25 Cal.3d at p. 425.) "A party seeking to prove waiver of a right to arbitrate must demonstrate (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts." (See Britton v. Co-op Banking Group (9th Cir. 1990) 916 F.2d 1405, 1412.) However, because of the strong public policy favoring arbitration, waiver will not be inferred and a party who asserts a claim of waiver bears a "heavy burden" of proof. (Thorup v. Dean Witter Reynolds, Inc. (1986) 180 Cal.App.3d 228, 234 [225 Cal.Rptr. 521] [FAA case]; accord, Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 189 [151 Cal.Rptr. 837, 588 P.2d 1261] [same, under the California Arbitration Act].) Under California law, questions of waiver of the right to compel arbitration are for the court to decide. (@ 1281.2; and see Printing Specialties & Paper Prod. Union v. Litton Fin. Printing Co. (1982) 129 Cal.App.3d 100, 104-105 [181 Cal.Rptr. 6].) The California case on which respondents primarily rely for their waiver argument, Weisman v. Johnson, supra, 133 Cal.App.3d at page 295, does not extend so far as to authorize a finding of waiver in this case. Indeed, there is no authority under either California or federal law n21 to support a court in ruling that a party has "waived" its contractual right to arbitrate by engaging in dilatory conduct in a pending arbitration proceeding. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 Quite to the contrary, under federal law, the Ninth Circuit has held that claims of waiver based on a party's dilatory conduct in the selection of an arbitrator must be submitted to the arbitrator. (ATSA of California, Inc. v. Continental Ins. Co. (9th Cir. 1983) 702 F.2d 172, 175; see also John Wiley & Sons, v. Livingston (1964) 376 U.S. 543, 556-558 [11 L.Ed.2d 898, 908-909, 84 S.Ct. 909] ["Once it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator."].) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Weisman v. Johnson, supra, 133 Cal.App.3d 289, deals with a party's intransigent refusal to submit to the jurisdiction of any forum for a hearing on the merits of four distinct contract-based claims, only one of which was covered by a written arbitration clause under which the parties agreed to arbitrate " 'any and all disputes arising [under the contract] in accordance with the arbitration act of the Province of Ontario.' " The plaintiff, Weisman, first demanded payment of the amounts due on all four contracts in April 1979, but the defendant, Johnson, flatly denied all liability for the amounts owed. (Id. at pp. 291, 293.) Weisman then filed a civil action in Los Angeles County in December 1979. In response, Johnson successfully moved to quash the substituted service by which Weisman had attempted to obtain personal jurisdiction over him. (Id. at pp. 291-292.) When Weisman filed an amended complaint against Johnson and a corporation of which he was the sole shareholder and sole director, Johnson again moved to quash service on the ground that he was not a resident of California and that the action should be tried either in Ontario or in New York, where he allegedly resided. Johnson also moved to stay or dismiss the civil action, but did not assert any right to have the matter decided by an arbitrator. Weisman successfully opposed the second motion to quash with uncontroverted evidence that Johnson had filed for divorce in Los Angeles Superior Court in May 1979, alleging that he had been a resident of Los Angeles County for over three months, and that Johnson had recently given a newspaper interview, accompanied by his photograph, from his " 'huge, rambling Los Angeles home.' " (Id. at pp. 292, 294.) It was not until July 11, 1980--more than a year and three months after Weisman had originally demanded payment--that Johnson finally petitioned the court to compel arbitration, taking the position that the matter should be arbitrated in Toronto. However, Johnson refused to stipulate to the jurisdiction of the Ontario Courts or the Ontario Arbitration Panel. The trial court denied Johnson's petition to compel arbitration, ruling that there was no agreement to arbitrate three of the four contract claims and that, as to the fourth claim, the defendants had " '... waived their right to arbitrate.' " (Weisman v. Johnson, supra, 133 Cal.App.3d at p. 292.) The Court of Appeal affirmed holding that, on these facts, there was ample evidence Johnson had acted in bad faith, violated a "duty to cooperate" implied by law in the agreement to arbitrate (see Frey & Horgan Corp. v. Superior Court, supra, 5 Cal.2d at pp. 404-405) and had, thus, lost his right to compel specific performance of the arbitration agreement. (Weisman v. Johnson, supra, 133 Cal.App.3d at pp. 293-295.) The instant case is readily distinguishable from Weisman, supra, The conduct of which respondents complain all occurred after the parties mutually agreed that the Engallas' medical malpractice claims were arbitrable and voluntarily submitted to the arbitral forum. Nothing in Kaiser's or its attorneys' conduct indicated that it was withdrawing its consent to arbitrate the dispute. In the circumstances of this case, and in light of the strong public policy favoring arbitration, we will not infer a waiver by Kaiser of its contractual right to arbitrate. (Thorup v. Dean Witter Reynolds, Inc., supra, 180 Cal.App.3d at p. 234; Doers v. Golden Gate Bridge, etc. Dist., supra, 23 Cal.3d at p. 189.) Respondents contend, however, that certain language in Weisman, supra, supports the trial court's decision to reject Kaiser's petition to compel arbitration on "waiver" grounds. That is, the Weisman court stated, "A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. [Citation.] Accordingly, equitable principles come into play and the actions of a party seeking to compel arbitration can be considered by the trial court and this court. Specifically, no one can take advantage of his own wrong. [Citation.]" (133 Cal.App.3d at p. 295.) There is a certain appeal to this reasoning in the factual circumstances of Weisman and the instant case. The defendant in Weisman had clearly engaged in wrongful, dishonest conduct in his efforts to avoid an adjudication of the plaintiff's claims. Similarly, as we have already discussed, the trial court was fully justified in finding that Kaiser had a "cavalier attitude" about moving this case forward, to the Engallas' prejudice. Moreover, to the extent it can be inferred from the evidence that Kaiser was intentionally "dragging its feet" to avoid paying damages to a patient with a terminal illness for which Kaiser health care providers may have been partially responsible, Kaiser's conduct was truly reprehensible. Nevertheless, we do not find the Weisman court's reasoning to be controlling in a case in which the parties have already submitted their dispute to arbitration when the wrongful conduct occurs. In such a case, there is no reason to assume that a neutral arbitrator cannot or will not take charge of the situation and impose appropriate sanctions for the misconduct. (See Titan, supra, 29 Cal.App.4th at p. 488; Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1802, fn. 10.) Besides, as we have already discussed, any party engaging in wrongful, dishonest conduct in the arbitration runs the risk that a court will ultimately vacate on grounds of "corruption" any award that party may obtain. (See @ 1286.2, subd. (a); see also 9 U.S.C. @ 10.) Respondents' final challenge to the Kaiser arbitration program is an assertion that it is founded on an unconscionable contract of adhesion. n22 Specifically, they contend that the arbitration provision is inherently unfair because it calls for a tripartite panel of two party arbitrators and one neutral arbitrator, entailing additional costs to be borne by claimants, and because Kaiser does not entrust administrative oversight to an independent organization such as JAMS-Endispute or the American Arbitration Association. Presumably, the trial court had these arguments in mind when it found that the Kaiser arbitration system is "corrupt ... in general." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 There is no dispute that the arbitration provision is adhesive. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 743 [222 Cal.Rptr. 1, 710 P.2d 833]; and see Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694 [10 Cal.Rptr. 781] [defining contract of adhesion as "a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it"].) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - "Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or 'adhering' party will not be enforced against him. [Citations.] The second--a principle of equity applicable to all contracts generally--is that a contract or provision, even if within the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or 'unconscionable.' " (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 828, 831 [171 Cal.Rptr. 604, 623 P.2d 165] [denying enforcement of unconscionable provision that required arbitration before an arbitrator allied with one party, but remanding with instructions that the superior court appoint a neutral arbitrator]; see also Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 414 [220 Cal.Rptr. 807, 709 P.2d 826].) The ultimate test of unconscionability is whether the contractual provision "shocks the conscience." (California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 213-215 [27 Cal.Rptr.2d 396] [rejecting unconscionability challenge to $ 3 charge for returned checks, which was at the low end of market prices charged by banks and was not "so exorbitant"].) (15) However, even a finding of unconscionability as to a particular aspect of an arbitration agreement will not justify denial of a petition to compel arbitration; rather, because of the strong public policy favoring arbitration, courts will ordinarily enforce the arbitration agreement without requiring use of the offensive procedure(s). (Graham v. Scissor-Tail, Inc., supra, 28 Cal.3d at pp. 819-820.) Under these standards, we conclude that the trial court's finding of unconscionability was not supported by substantial evidence. Although the utility of party arbitrators is questionable where the parties are represented by counsel, such a requirement is not so harsh or surprising as to be deemed unconscionable. Claimants have clear notice of the requirement for tripartite panels, a requirement which is plainly within the contemplation of the California arbitration statutes. (See @ 1282.) This is not a case, as was Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659 [18 Cal.Rptr.2d 563], of "hidden procedures" that unjustifiably increase the cost of adjudicating relatively small claims. The instant case involves claims for hundreds of thousands of dollars in damages, prosecuted by a large San Francisco law firm. As Kaiser concedes, it would be a wholly different story if Kaiser was insisting on a panel of three arbitrators for a very small claim for damages. (See id. at pp. 1665-1666.) Respondents' complaint about the lack of independent administrative oversight is really just a reiteration of its arguments that the contractual mechanism for appointment of a neutral arbitrator is not self-executing, and subject to delays, and that Kaiser has superior access to information about the pool of potential arbitrators. These allegations do not fare any better when cast as a claim of "unconscionability" than they did when framed as charges of fraud. As we have explained, much of the delay in the appointment of a neutral arbitrator that occurred in this case could have been avoided if respondents had proceeded to court immediately after the 60-day contractual period expired to obtain an order pursuant to section 1281.6.